PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO STRIKE PORTIONS OF THE IMPROPER ERRATA SHEETS FILED BY DEFENDANTS

Plaintiff, JOHN DOE, by and through his undersigned counsel, hereby files his reply to the Defendants’ Response to Plaintiff’sMotion to Strike portions of the Improper Errata Sheets provided by Defendants, and as good cause therefore relies on the following:

MEMORANDUM OF LAW

On September 5, 2013, the Defendants filed their response in opposition to Plaintiff’s Motion to Strike. [D.E. 59]. Nothing in the Defendants’ response changes the fact that the Defendants overreached the bounds of Federal Rule of Civil Procedure 30(e) by making material changes to their testimony that were motivated by a desire to alter damaging evidence. The Court cannot allow the Defendants to do this as it would fundamentally handicap the discovery process.

i. The Defendants’ claimed reasons for altering their deposition testimony are farcical.

Pursuant to rule 30(e), the Defendants provided the reasons for modifying their testimony. In short those reasons were: 1) the depositions were taken by telephone, 2) the Defendants were unable to print or read certain documents during the deposition. Neither of these are legitimate reasons to alter deposition testimony under Rule 30(e).

Firstly, the fact that the depositions were taken by phone did not affect the Defendants’ corporate representatives’ ability to understand and answer the questions that were asked of them. The deposition transcripts clearly indicate that the changes made by the Defendants are in no way related to the corporate representatives either not hearing or understanding the questions that were asked. If at any point during the deposition the deponent did not understand the question for any reason, the question was repeated or rephrased for the benefit of the deponent. If the deponent clearly understood the question and provided an answer (which the transcripts reflect), the fact that the testimony was given via telephone does not provide a basis to alter it at a later date.

Secondly, the Defendants claim that they were unable to read documents during their deposition either for medical reasons or because they could not find and/or print the documents. Again this is not a sufficient reason to allow the Defendants to materially alter their testimony. Each Defendant was given notice of their deposition in compliance with the Federal Rules of Civil Procedure. Each notice contained areas of inquiry about which the Defendants should have been prepared to answer questions.

Fundamental questions like ownership of the various corporations were certainly not surprise questions that the Defendants should have been caught off guard by. These are simple questions that the Defendants should have been prepared to answer. Nowhere in the Defendants’ claimed reasons for altering their testimony do they state that the documents they subsequently reviewed were unavailable to them prior to the depositions. As such, they have no legitimate excuse as to why they did not review these documents prior to testifying as is required of them as properly noticed corporate representatives designated to testify on behalf of the Defendants.

Ii. Local Rule 26.1(h) does not bar the filing of this motion.

Recognizing the substantive weakness of their position, the Defendants hope to escape the relief requested by Plaintiff by relying on a procedural loophole. Specifically, the Defendants invoke Southern District of Florida Local Rule 26.1(h), which states:

(h) Discovery Motions.

(1) Time for Filing. All motions related to discovery, including but not limited to motions to compel discovery and motions for protective order, shall be filed within thirty (30) days of the occurrence of grounds for the motion. Failure to file a discovery motion within thirty (30) days, absent a showing of reasonable cause for a later filing, may constitute a waiver of the relief sought.

Unfortunately for the Defendants, Plaintiff’s motion to strike is not a discovery motion.

Local Rule 26.1(h) makes no mentions of motions to strike portions of the record. Just because evidence was obtained from the discovery process (either from deposition or written discovery), that does not mean that any motion related to that evidence is a “discovery motion”. Rule 26.1 is entitled “Discovery and Discovery Material”. Tellingly, Rule 26.1 specifically addresses motions to compel, motions for protective order, interrogatories and production requests. What this rule seeks to control is the process by which discovery is conducted in a case, not the way in which the Court judges the sufficiency of evidence once it becomes part of the record.

Herein, Plaintiff’s motion does not concern the discovery process. Rather, Plaintiff’s motion concerns the record as it exists in this case. The Defendants did something they were procedurally allowed to do, i.e. use Fed. R. Civ. Pro. 30(e) to provide errata sheets to their deposition testimony.[1] Plaintiff could not file a motion to prevent the Defendants from doing this. That is part of the discovery process. Once the Defendants made changes to the testimony, regardless of their merit, those changes became part of the record in this case.

What Plaintiff seeks to do through his motion is not to control or alter the discovery process, rather, Plaintiff seeks to strike sham testimony from the record. In that sense, Plaintiff’s motion is analogous to a motion to strike a sham affidavit, which would not be governed by Local Rule 26.1.

Even if the motion to strike portions of the Defendants’ errata sheets was governed by the 30-day time limit enumerated in subsection h of Local Rule 26.1, the rule indicates that the 30 day time limit runs “within thirty (30) days of the occurrence of grounds for the motion.” In the present matter, the occurrence giving rise to grounds for Plaintiff’s motion was not the actual provision of the errata sheets to Plaintiff. Rather, the occurrence giving rise to Plaintiff’s motion is the Defendant’s reliance on the altered testimony in their reply brief. Using that date, Plaintiff’s filing was only four days (and only 2 business days) past the 30 day window enumerated in the rule.

Plaintiff submits that he has good cause for such late filing as Plaintiff reached out to the Defendant on July 17, 2013 and informed the Defendants that he intended to file a motion to strike portions of the errata sheets. However, Plaintiff told the Defendants that if there was any realistic probability of settlement, he would withhold on doing this extra work and burdening the Court. On that same day, Defense counsel responded to undersigned counsel asking for Plaintiff’s demand and stated that she would discuss the probability of a potential settlement with her clients. Plaintiff then waited to file his motion to strike so as not to burden the Court should there be a reasonable chance of settlement.

However, after July 17, 2013, Defense counsel never got back to Plaintiff about settlement one way or another. As noted in Plaintiff’s Certificate of Conference in both the present motion and his motion for leave to amend, Plaintiff had difficulty contacting counsel for the Defendants at the beginning of August as Defense counsel was in trial. Accordingly, Plaintiff submits that good cause exists to allow for the late filing of Plaintiff’s motion to strike, should this Honorable Court find that Local Rule 26.1 does in fact apply, because Plaintiff only waited to file his motion so as to avoid unnecessary work for all parties, including the Court.

Regardless of this good cause, this Honorable Court has previously found that “the Local Rule’s provision that an untimely discovery motion can be denied is permissive, not mandatory…”[2] Adelman v. Boy Scouts of America, 276 F.R.D. 681, 690 (S.D. Fla. 2011). The reason for this is that, “[t]he 1998 Comments to Local Rule 26.1 note that the 30–day provision is designed to ensure that discovery motions are ‘filed when ripe and not held until shortly before the close of discovery or the eve of trial.’” Id. In Adelman, the Court found that since there was no evidence that the party moving for relief intentionally waited to surprise the opposing party with the motion on the eve of trial, there was no reason to bar consideration of the motion based on Local rule 26.1.

Similarly herein, Plaintiff fully disclosed to the Defendants that he would seek to strike portions of their errata sheets, both in his initial response to the Defendants’ Motion to Dismiss [D.E. 47, pg. 11, fn 5], and in the above mentioned email discussing the potential of settlement. Further, Plaintiff did not wait until the eve of trial to do so. Accordingly, there is no prejudice to the Defendants if the Court considers Plaintiff’s motion.

IIi. The Court’s should favor a policy that prevents parties from doctoring their testimony to avoid unfavorable outcomes.

It is important for the Court to know that the advisory committee note to Fed. R. Civ. Pro. 30(e) states that the rule exits “to reduce problems sometimes encountered when depositions are taken stenographically.” This insinuates that only an error in transcription should be changed. This interpretation of Fed. R. Civ. Pro. 30(e) is supported by common sense because the Defendants’ interpretation of the rule would essentially neuter depositions as a discovery device.

Courts who favor a narrow interpretation of Rule 30(e) “focus on the strategic interest of taking a deposition; namely to capture and preserve testimony in an adversarial manner.” See Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000). Depositions are supposed to be part of the adversarial process. It is this adversarial nature of a deposition that is so effective at rooting out the truth of a matter. Should this Honorable Court endorse what the Defendants did in this case, it would render depositions meaningless. The end result would be parties altering testimony to avoid summary judgment and/or lacking the ability to effectively cross examine a witness at trial by impeaching that witness with their prior sworn testimony. Ultimately, this policy would allow for the obfuscation of the truth.

IV. Conclusion

The Defendants’ claimed reasons for altering their testimony do not hold water. They are excuses, not justifications. Recognizing the weakness of their argument, the Defendants instead hope to rely on an inapplicable rule to argue that Plaintiff waived his right to relief. The plain language of the rule proves that this is not true. Lastly, this Honorable Court should consider the dangerous precedent it would set should it allow the Defendants to alter their depositions as they have.

[1] Although the Defendants are procedurally entitled to make alterations to their deposition testimony, they are not entitled to make material and/or contradictory changes. Rather, the Defendants changes should only have been made to correct errors in transcription.

[2] Again Plaintiff stresses that he does not believe his Motion to Strike is a “discovery motion” controlled by Local Rule 26.1.

I would like to thank all of the staff at LMAW, P.A., especially Jason Marguilies and his paralegal Maggie, for their support and hard work during my lawsuit. They were extremely helpful throughout the whole experience.

* Disclaimer required by the Florida Bar: The numbers above are the gross recoveries, before deduction for attorneys fees and expenses. Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.